Citation Nr: 0622725
Decision Date: 07/31/06 Archive Date: 08/10/06
DOCKET NO. 05-04 577 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to an initial rating higher than 20 percent
for a left knee disability.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
REPRESENTATION
The veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
S. A. Mishalanie, Associate Counsel
INTRODUCTION
The veteran served on active duty in the military from August
1969 to August 1971.
This appeal to the Board of Veterans' Appeals (Board) arose
from an April 2004 decision of a Regional Office (RO) of the
Department of Veterans Affairs (VA). In May 2006, to support
his claims, the veteran testified at a hearing before the
undersigned Veterans Law Judge (VLJ) of the Board using
video-conferencing technology.
The veteran also perfected an appeal from the April 2004 RO
decision denying his claim for service connection for
hypertension. But during his May 2006 hearing, he withdrew
this claim from appellate consideration (see Hr'g. Tr., pg.
2, and VA Form 21-4138). So it is no longer before the
Board. See 38 C.F.R. § 20.204(c) (2005).
Regrettably, because further development of the evidence is
required before the Board can make a decision, the claims are
being REMANDED to the RO via the Appeals Management Center
(AMC). VA will notify the veteran if further action is
required on his part.
REMAND
With regard to the veteran's left knee disability, since that
last VA examination was in August 2003, almost 3 years ago,
and he claims his condition has worsened during the many
months since (Hr'g. Tr., pg. 6); another examination is
needed to adequately assess the current severity of this
service-connected disability.
See 38 U.S.C.A. § 5103A(d) (West 2002). See, too, Caffrey v.
Brown, 6 Vet. App. 377, 381 (1994) (Court determined the
Board should have ordered contemporaneous examination of the
veteran because a 23-month old exam was too remote in time to
adequately support the decision in an appeal for an increased
rating); see also Allday v. Brown, 7 Vet. App. 517, 526
(1995) (where the record does not adequately reveal current
state of veteran's disability, fulfillment of statutory duty
to assist requires a contemporaneous medical examination,
particularly if there is no additional medical evidence that
adequately addresses the level of impairment of the
disability since the previous examination).
With regard to the veteran's claim for service connection for
PTSD, during the May 2006 hearing he provided additional
information concerning his alleged stressor in service. He
said he was stationed at Camp Eagle with the
515th Transportation Co., supporting the 101st and assigned to
MAC-V (Military Assistance Command Vietnam) (see Hr'g. Tr.,
pg.9). He said that he was on his way to pick up ammunition
from Tan My Rahn (phonetic) when the lead truck was ambushed,
hit by a mine, and a fellow soldier killed (pgs. 9-10).
He could not remember the name of the soldier, but remembers
the event occurred in either March or April 1970 (pgs. 10-
11). This information is sufficient for VA to request that
the U.S. Army and Joint Services Records Research Center
(JSRRC) attempt to corroborate the stressor. See 38 C.F.R. §
3.159(c)(2) (the claimant must provide information sufficient
for the records custodian to conduct a search of the
corroborative records).
In the April 2004 rating decision at issue, the RO determined
that all efforts to obtain the veteran's military personnel
records had been exhausted. Apparently an effort was made to
obtain them from the National Personnel Records Center (NPRC)
(see Personnel Information Exchange System (PIES) request
dated in March 2003), but the records had not yet been
retired because he was enlisted in the Army Reserves (he also
had service in the Army National Guard). The PIES printout
indicates the request was transferred to the Human Resources
Command (HRC) (formally U.S. Army Reserve Personnel Center)
in St. Louis. The claims file does not contain a response
from the HRC indicating whether it has the veteran's
personnel file.
In March 2003, the RO sent a letter to the veteran's Army
National Guard Unit in West Orange, New Jersey, requesting
his personnel records. In April 2003, a response was
received indicating there were no records on file for him at
that unit. In October 2003, the RO sent a letter to the
Adjutant General of New Jersey, but review of the file
indicates no response was ever received.
In sum, the evidence does not indicate that all efforts have
been made to obtain the veteran's military personnel records.
The claims file does not contain a response from the HRC in
St. Louis or a response from the New Jersey Adjutant General.
So on remand, additional efforts must be made to locate the
veteran's personnel file. See 38 C.F.R. § 3.159(c)(2)
(2005).
In addition, the veteran said he continues to receive
treatment for his left knee and PTSD at the VA Outpatient
Clinic in Sumter, South Carolina (pgs. 2-3). He is counseled
by a social worker twice a month (pg. 7). The RO already has
obtained VA outpatient treatment (VAOPT) records from Sumter
through April 2005. But on remand, records from April 2005
until the present should also be obtained.
Accordingly, this case is REMANDED for the following action:
1. Obtain the veteran's relevant
personnel records. Additional requests
should be made to the HRC in St. Louis and
to the New Jersey Adjutant General.
Responses must be obtained and put in the
claims file even if the response indicates
the records are not located at these
facilities. If it is determined the
records do not exist, or that the
custodian of records does not have any
such records, a determination must be made
as to whether additional requests would be
futile. This determination must be noted
in the claims file.
2. Prepare a letter asking the JSRRC to
provide any available information that
might corroborate the veteran's alleged
stressor in service. In particular, this
includes any reports of a soldier killed
by a mine while traveling with the 515th
Transportation Co. from Camp Eagle to pick
up ammunition at Tan My Rahn (phonetic) in
March or April 1970. Send JSRRC copies of
the personnel records obtained that show
the veteran's service dates, duties, and
units of assignment, etc.
3. Obtain the additional records of
treatment from the Sumter VA Outpatient
Clinic from April 2005 until the present.
4. Schedule the veteran for an
appropriate VA medical examination to
assess the severity of his service-
connected left knee disability.
The claims folder is to be made available
to the examiner, and the examiner is asked
to indicate that he or she has reviewed
the claims file for the veteran's
pertinent medical history. A copy of this
remand should also be provided. All
necessary testing should be done, to
include specifically range of motion
studies (measured in degrees, with normal
range of motion specified too), and the
examiner should review the results of any
testing prior to completion of the
examination report.
The examiner must determine whether there
are objective clinical indications of
pain/painful motion, weakened movement,
premature/excess fatigability,
or incoordination and, if feasible, these
determinations should be expressed in
terms of the degree of additional range of
motion loss due to such factors. This
includes instances when these symptoms
"flare-up" or when the left knee is used
repeatedly over a period of time. And
this determination also should be
portrayed, if feasible, in terms of the
degree of additional range of motion loss
due to these factors.
The examiner should also clarify whether the
veteran has any instability of the left knee
and, if he does, the severity of it
(e.g., slight, moderate or severe), or episodes
of locking.
If an opinion cannot be rendered in response to
these questions, please explain why this is not
possible or feasible.
The examination report should be completely
legible. If an examination form is used to
guide the examination, the submitted
examination report must include the questions
to which answers are provided.
5. Review the claims file. If any
development is incomplete, including if
the examination report does not contain
sufficient information to respond to the
questions posed, take corrective action
before readjudication.
38 C.F.R. § 4.2; Stegall v. West,
11 Vet. App. 268 (1998).
6. Then readjudicate the veteran's claims
in light of any additional evidence
obtained. If they are not granted to his
satisfaction, prepare a supplemental
statement of the case (SSOC) and send it
to him and his representative. Give them
time to respond before returning the case
to the Board for further appellate
consideration.
No action is required of the veteran or his representative
until further notice is received. By this action, the Board
intimates no opinion, legal or factual, as to the ultimate
disposition warranted in this case.
The veteran has the right to submit additional evidence and
argument concerning the claims the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).